holds that fees are not available to settling parties, one of the
purposes of IDEA, encouraging settlement of claims, or providing adequate
counsel to parents, must give. This Court refuses to read the word
"prevailing party" to require such a result.
In addition, for similar reasons, Buckhannon does not preclude the
award of fees pursuant to the IDEA fees provision to plaintiffs who
settle their IDEA claims during administrative proceedings. The IDEA
provision states that fees are available to prevailing parties in "any
action or proceeding brought under this section," language which includes
federal civil actions and administrative proceedings. §
1415(i)(3)(B); see also, e.g., Moore v. District of Columbia, 907 F.2d 165
(D.C.Cir. 1990) (holding that fees are available to attorneys under IDEA
for work done at administrative level); accord King v. Floyd County Board
of Education, 228 F.3d 622, 625 (6th Cir. 2000); Johnson v. Bismarck
Pub. Sch. Dist., 949 F.2d 1000, 1003 (8th Cir. 1991). Because fees are
available under IDEA for both administrative and judicial proceedings,
the timing of the settlement is of no moment to the determination of who
is a prevailing party. By settling an administrative IDEA claim, a
defendant school system commits itself to an alteration of its behavior
with respect to a child's education just as it does when settling a
federal lawsuit pursuant to IDEA. Furthermore, as discussed above, IDEA
encourages settlement at the administrative level, but also envisions
legal representation during that process, see § 1415(h)(1). These
dual purposes would be undermined if plaintiffs were precluded by their
inability to pay counsel from receiving the legal representation that the
Because this Court refuses to extend Buckhannon non beyond its
holding, it is free to conclude that attorney's fees are available to
plaintiffs who pursue IDEA claims against the DCPS that result in the
private settlement of those claims during either the administrative
hearing process or a federal civil action. As explained above, because
attorney's fees are available under IDEA to individuals such as
plaintiff, either a consistent policy and practice of requiring fee
waivers in settlement agreements or an intentional or vindictive attempt
to prevent plaintiffs who challenge DCPS actions from recovering fees and
therefore retaining legal representation could violate the fees provision
For all these reasons, because plaintiffs have alleged facts that show
a custom, practice, or policy by DCPS to infringe the rights of parents
and children to legal representation under IDEA, and a vindictive intent
to cause such infringement, plaintiffs have stated a claim for a
violation of the IDEA attorney's fees provision, § 1415(i)(3)(B).
3. Plaintiffs' Procedural Right to an Impartial Hearing
Defendant's motion to dismiss fails to address plaintiffs claims under
IDEA based on problems with the March 1, 2001 hearing. See Complaint at
¶¶ 38-41. For example, plaintiffs allege that the hearing officer
intentionally refused to admit evidence relevant to plaintiffs
arguments. Id. at ¶¶ 38-39. Plaintiffs also argue that the hearing
officer impermissibly shifted the burden of proof on to plaintiff by
requiring that plaintiff testify, and then dismissed the complaint
because plaintiff was not present to testify. Id. at ¶¶ 40-41.
Because defendant has failed to address these claims, plaintiffs'
allegations with respect to procedural violations at the March 1, 2001
C. Plaintiffs' § 1983 Claim
IDEA violations can be the predicate for a § 1983 claim based on
those statutory violations. See, e.g., Walker v. District of Columbia,
969 F. Supp. 794 (D.D.C. 1997); see also § 1415. Section 1983 states
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects. or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress
42 U.S.C. § 1983. In any § 1983 action against a municipality
such as the District of Columbia, the burden is on the plaintiffs to
establish that the municipality has a custom or practice that caused "the
alleged constitutional or statutory violation. Sec. e.g., Monell v. Dep't
of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978); Daskalea v. District of Columbia,
227 F.3d 433, 441 (D.C.Cir. 2000). Plaintiffs here have alleged that the
DCPS has a custom, policy, or practice of interfering with the right to
counsel guaranteed by IDEA to disabled children and their parents.
Plaintiffs complaint cites several actions by DCPS that allegedly reflect
this policy. First, DCPS invests the same official with the power to
negotiate settlements of IDEA claims and to negotiate settlements of
fees. While simultaneous fee and merits settlement negotiations are not
per se illegal or unethical, they could be relevant evidence of an intent
to undermine the ability of plaintiffs to retain unconflicted counsel.
Second, DCPS has conditioned settlement offers on the waiver of
attorneys' fees. This could reflect the intentional creation of a
conflict of interest between plaintiffs and plaintiffs' counsel in an
attempt to deprive plaintiffs of their rights to fees and counsel. In
addition, in this case plaintiffs have presented documents, in the form
of a witness list for an administrative hearing that named plaintiffs'
counsel and three famous dead people, that could reflect a vindictive and
retaliatory attitude by DCPS "toward counsel who vigorously represent
their clients. This Court finds that plaintiffs allegations constitute
sufficient support for their § 1983 claim to survive defendants'
motion to dismiss.
Defendant's sole argument in opposition to plaintiffs' § 1983 claim
is that plaintiffs have failed to allege a sufficient injury to sustain a
claim under § 1983. Insofar as defendant is attempting to argue that
plaintiffs lack standing under Article III of the Constitution. it has
done nothing to support "that argument. Defendant cites no standing cases
to support its claim, which was raised in its Reply brief for the first
"time, that plaintiffs lack standing to challenge the actions of the DCPS
at issue here. Therefore, the Court has no choice but to disregard these
undeveloped and unsupported statements in defendant's brief. As explained
above, plaintiffs have alleged sufficient injury as a result of the DCPS'
alleged pattern and practice of infringing children and parents' rights
to counsel under IDEA to state a § 1983 claim.
II. Plaintiffs' Motion for Injunctive Relief
Plaintiffs argue that the Perelman Memo issued August 31, 2001 that
announces DCPS' policy of not paying attorney's fees to parents who agree
to settle their IDEA claims unless the fees are a negotiated term in the
settlement is part of the DCPS' pattern and practice of denying parents
and children access to legal representation. Defendant's one page
response simply incorporates its previous motion to dismiss arguments,
plaintiff's standing to challenge this policy.
Despite DCPS's questionable reading of Buckhannon,*fn4 upon review of
the pleadings before the Court, plaintiffs have failed to establish their
standing to challenge the implementation of this specific policy. In
order for this Court to grant preliminary injunctive relief, plaintiffs
must establish, among other things, that they will suffer imminent harm
as a result of this policy. See, e.g., City of Los Angeles v. Lyons,
461 U.S. 95, 107 n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding
that a plaintiff has no standing to request injunctive relief where he
can not demonstrate "a real and immediate threat of future injury by the
defendant"); Fair Employment Council of Greater Washington, Inc. v. BMC
Marketing Corp., 28 F.3d 1268 (D.C.Cir. 1994).
In plaintiffs' reply brief, plaintiffs allege that subsequent to the
settlement of their underlying claim in January of 2001 and independent
of the attorney's fees issue, plaintiffs recently challenged DCPS'
failure to provide adequate services for Christopher. Therefore, argue
plaintiffs, the potential resolution of that new IDEA claim via settlement
brings plaintiffs within the impact of the Perelman memo. Plaintiffs have
submitted only the unsubstantiated assertions of counsel to establish
this potential injury. Without even an affidavit from plaintiffs, the
Court has no basis on which to find that plaintiffs have or will suffer
an irreparable harm from the implementation of this policy. Injunctive
relief is therefore inappropriate at this stage of the case.
For the foregoing reasons, it is hereby
ORDERED that defendants' motion to dismiss is DENIED; it is
FURTHER ORDERED that the defendants may file appropriate responsive
pleadings no later than Friday, April 5, 2002; it is
FURTHER ORDERED that plaintiffs' motion for an order barring the
implementation of the policy announced in the Perelman Memorandum on
August 31, 2001, is DENIED WITHOUT PREJUDICE; it is
FURTHER ORDERED that a status hearing will be held on Wednesday, April
17, 2002 at 10:00 a.m. in Courtroom One.
IT IS SO ORDERED.